AIR COMMAND AND STAFF COLLEGE AIR UNIVERSITY BENEVOLENT NEUTRALITY AND THE 'IGNORAMUS'S VETO': RELIGIOUS EXPRESSION IN THE MILITARY

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1 AU/ACSC/2015 AIR COMMAND AND STAFF COLLEGE AIR UNIVERSITY BENEVOLENT NEUTRALITY AND THE 'IGNORAMUS'S VETO': RELIGIOUS EXPRESSION IN THE MILITARY by Christopher S. Brownwell, Major, USAF A Research Report Submitted to the Faculty In Partial Fulfillment of the Graduation Requirements Advisor: Dr. Gregory Intoccia Maxwell Air Force Base, Alabama December 2015 DISTRIBUTION A. Approved for public release: distribution unlimited.

2 Disclaimer The views expressed in this academic research paper are those of the author and do not reflect the official policy or position of the US government or the Department of Defense. In accordance with Air Force Instruction , it is not copyrighted, but is the property of the United States government.

3 TABLE OF CONTENTS Page Disclaimer...ii Table of Contents...iii Abstract...iv Introduction...1 Background...6 Public's Response...6 IG report...7 Historical Context...9 Religion in the Military...12 Current State of the Law...14 Establishment Clause...15 Free Exercise Clause...18 Strict Neutrality...20 Benevolent Neutrality...23 'Ignoramus's Veto'...25 Analysis of Air Force Policy...28 Policy Changes...28 Current Policy...31 Conclusion...32 Recommendations...32 Conclusion...35 End Notes...37 Bibliography...42 iii

4 ABSTRACT The purpose of this research paper is to determine what policy changes are necessary for the Air Force to better protect religious expression while neither censoring nor "establishing a religion" in violation of the First Amendment of the U.S. Constitution. The research methodology used here is a problem/solution framework to determine what characteristic of neutrality towards religion the Air Force should adopt that provides the best solution for upholding the protections of the Establishment and Free Exercise Clauses. The paper's findings include that "strict neutrality," which demands a total separation between church and state, is unworkable and renders religious expression susceptible to violations of the Free Exercise Clause. The paper also finds that "benevolent neutrality," a position more accommodating toward religious expression, protects the free exercise of religion without violating the Establishment Clause. The recommendations include having Air Force Instruction (AFI) 1-1 define "religion" consistently with AFI , adding language to AFI 1-1 that states that religious expression does not inherently cause an adverse impact, and requiring Air Force leaders to avoid the use the their positions for to coerce subordinates, or show preferential treatment in the direction of a particular religion. iv

5 I. INTRODUCTION A diversified cross-section of the American culture, with different ages, ethnicities, familial ties, religions and worldviews, combines to create the Air Force culture. In Air Force Instruction (AFI) 1-1, the Air Force has attempted to create unity within this diversity to ensure a potent fighting force to prosecute our nation's wars. Although unity is the goal, conflict arising from differences is likely. Recently several conflicts have arisen in the Air Force with regards to religious expression. Paragraph 2.11 of AFI 1-1 holds "You should confidently practice your own beliefs while respecting others whose viewpoints differ from your own." 1 Some, however, find the expression of religion offensive. Air Force leadership has an interest in quelling conflicts before they tear at the fabric of cohesion which will hamper mission success. Several examples over the last few years demonstrate a consistent conflict between the secular and the Christian worldviews in the military. 2 After a complaint from the Military Religious Freedom Foundation (MRFF) in 2013 the installation commander at Joint Base Elmendorf-Richardson in Anchorage, Alaska ordered the removal of a chaplain's article titled "'No Atheists in Foxholes': Chaplains Gave all in World War II" from the on-line base forum. The installation commander stated "The 673d Air Base Wing does not advocate any particular religion or belief set over another and upon learning of the complaints from some readers, the article was promptly removed." 3 In removing the article, however, the installation commander denied the expression of religion without justifying the denial with a compelling government interest. 4 Later the article was republished on the base website. 5 A conspicuous disclaimer now appears before the article. 6 In 2014 a cadet at the U.S. Air Force Academy was forced to remove a scripture verse he had written on his whiteboard outside his dorm room. 7 Once again the MRFF complained,

6 demanding that not only the verse be removed, but that the cadet and his chain of command be punished. A spokesman for the Academy said "The whiteboards are for both official and personal use, but when a concern was raised we addressed it and the comment was taken down." Pressure from Academy leadership led to the cadet's self-censorship. Later an Academy spokesperson affirmed that the Bible verse on the cadet's whiteboard did not violate Air Force regulations. At Patrick Air Force Base, officials removed the entire Missing Man Table display set up to honor POWs and those who are MIA because the display contained a Bible. 8 The table had been displayed in the dining facility on base. Among other things, the table included an empty chair, a white table cloth, an inverted glass, and a Bible. 9 The Air Force explained "Unfortunately, the Bible's presence or absence on the table at the Riverside Dining Facility ignited controversy and division, distracting from the table's primary purpose of honoring POWs/MIAs." The Wing Commander said the display would be reintroduced "in a manner inclusive of all POWs/MIAs as well as Americans everywhere." To date, the display has not been reintroduced. Instead, the Wing Commander authorized a POW/MIA flag to replace the display. Though the display contained several elements carefully selected to convey meaning about how POWs had to endure their circumstances, Air Force officials removed the entire display because some found the Bible's presence offensive, while others were offended at the removal of the Bible. In 2015, citing Air Force Instruction 1-1, the MRFF wrote to Air Force Chief of Staff, General Mark Welsh, demanding Major General Craig Olson be court-martialed for his religious remarks at a National Day of Prayer Task Force event. 10 Major General Olson, while wearing his Air Force uniform at this event, credited God with the success in his career and asked those 2

7 in attendance to pray for Department of Defense (DOD) leaders who "need to humbly depend on Christ." He also asked for prayer for the troops preparing to deploy so they could "bear through that by depending on Christ." The Air Force leadership, however, declined to prosecute Major General Olson in this case. The Air Force spokesman stated "His remarks were his own personal opinions and do not represent the United States Air Force." In quoting AFI 1-1, Mikey Weinstein of the MRFF, however, insisted that Major General Olson's remarks were a clear violation of Air Force policy and the Establishment Clause of the Constitution. 11 In 2015, a complaint arose over the phrase "Have a blessed day" at Robins Air Force Base. Several of the base's gate guards had traditionally greeted those entering the base with the phrase. Though protocol did not compel any gate guard to offer the greeting, the Security Forces Commander, after a complaint had been lodged by the MRFF, immediately ordered the gate guards to refrain from using that phrase because of its sectarian religious nature. 12 Following a groundswell of furor over the banning of the phrase, the Air Force reversed its position and allowed the gate guards to once again greet base visitors with "Have a blessed day." 13 Other incidents include the removal of the mention of "God" from a unit patch 14, the removal of a Nativity scene from Shaw Air Force Base 15, and an officer being told to remove his Bible from his desk. 16 These incidents show there is confusion among Air Force leaders and members of the general public about the application of the Air Force's policy regarding religious expression. Although no statistics are available to show the extent of these occurrences, enough anecdotal accounts have been reported that the public has started to pay closer attention to the conflict between secular and religious expression in the military. The high profile nature of the restrictions on religious expression in the Air Force has caused several congressmen to question 3

8 the Air Force's policy of religious accommodation and its implementation. Members of Congress thought the issue so important that they addressed the religious liberty of military members in the 2013 National Defense Authorization Act and reinforced it in Several of these cases surrounding the silencing of religious expression have started with a single person or a handful of people complaining to commanders or to outside organizations like the MRFF. These complaints have been successful in, at least initially, causing commanders to silence religious expression of Air Force members. Such actions by commanders, even if only temporary, actually violate the Free Exercise Clause of the First Amendment, and have been described by one court as an "Ignoramus's veto." 17 Because most of the focus of the Air Force policy on religious liberty and the rights of conscience has been on the accommodation of religious practices, the Air Force regulations deal only tangentially with free exercise of religious speech. The lack of clear guidance has led to several incidents where religious speech and opinions informed by religious sentiments have been silenced. Air Force policy has changed several times in the last decade, yet problems with protecting religious expression persist. Without changes to the current regulations, the Air Force policy will continue to create an atmosphere in the Air Force toward silencing religious expression. The research question this paper will attempt to answer is: what policy changes should the Air Force adopt to better protect religious expression while neither censoring nor establishing a religion in violation of the First Amendment of the U.S. Constitution. Because a policy of "strict neutrality" that demands a total separation of church and state is unworkable, the Air Force should adopt a concept of "benevolent neutrality" in its policy that is more accommodating to religious expression. Benevolent neutrality provides the best way to comply with the Supreme 4

9 Court's mandate of neutrality towards religion while protecting Airmen's free exercise of religion. This research paper will argue that, while the Supreme Court's current interpretation of the First Amendment mandates neutrality, a posture of strict neutrality is not required. Instead, the research will show the Court has carved out a "benevolent neutrality" position in its case law that will allow the Air Force to permit more religious expression without endorsement or establishment of religion. This paper maintains that current Air Force policy is susceptible to restricting too much religious expression. Finally, the paper will argue that certain changes to the Air Force policy regarding religious expression will meet the demands of the Establishment and Free Exercise Clauses and prevent the restriction of religious expression. As a point of clarification, the discussion of religion in the Air Force often uses the words "religious accommodation" and "religious expression" interchangeably. This paper, however, makes a distinction between them. Accommodation involves the religious practices or observances that require forbearance from official policies or duty requirements. These accommodations include requests for exceptions to grooming standards or immunization requirements, or permission for the wearing of religious items with the uniform, or to have time off for religious observances. Religious expression includes speech or written material that articulate statements or opinions about religion, politics, morality, ethics or society that are informed by one's religious beliefs. The research design for this paper uses a problem/solution methodology. Section II will briefly present Congress's reaction to the problem surrounding religious expression and accommodation in the military branches. Also, included in section II will be historical background information describing the importance of religion to the nation's maintenance and 5

10 military. Section III will set the criteria for Air Force policy's compliance with the Constitution by presenting Supreme Court case law requiring neutrality toward religion and protection of religious expression. In Section III the paper will offer two alternative types of neutrality, strict and benevolent, that the Air Force can adopt toward religious expression. In section IV, this paper will evaluate the Air Force's policy regarding religious expression. Section V will conclude with recommendations to improve the Air Force's policy toward religious expression. II. BACKGROUND Public's Response The way the Air Force has recently handled complaints about religious expression has concerned many in the American public, and has the potential for creating a public affairs problem for the Air Force. Concern over this conflict has even reached the halls of Congress. Congressman John Fleming of Louisiana mentioned that, of the Military Services, the Air Force seems to be worst offender when it comes to restricting religious expression. 18 In March 2014, at a House Armed Services Committee hearing on the Air Force budget, Congressman Randy Forbes questioned the Secretary of the Air Force and the Chief of Staff about the Air Force Academy requiring a cadet to remove a scripture reference from his whiteboard. General Welsh told the congressman that the whiteboard in question was not in the cadet's room, but in a common hallway where others could read it. Congressman Forbes later told a news outlet that he was deeply concerned that the Air Force is teaching that religious expression was incompatible with effective leadership. 19 After CSAF Religious Freedom Focus Day on 28 April 2014, the Chief of Staff requested Congressman Forbes provide feedback on the language in AFI 1-1. In the Congressman's response he was concerned the language placed a "disproportionate emphasis on religious 6

11 neutrality over the protection of religious expression." 20 Because of this emphasis, the Congressman feared the Air Force Policy created an artificial ambiguity for religious expression that could result "in a chilling effect and provide[] a foothold for a heckler's veto." 21 Congressman Forbes then offered suggestions on how the Air Force could remove the emphasis on government neutrality and protect appropriate expressions of faith. In January 2013 Congress passed the 2013 National Defense Authorization Act (NDAA) with a provision for the "Protection of Rights of Conscience of Members of the Armed Forces and Chaplains of such Members." 22 In December 2013 Congress revisited the protection of religious expression in the military by providing an "Enhancement of Protection of Rights of Conscience of Members of the Armed Forces and Chaplains of such Members." 23 In addition to this enhanced protection Congress required the Inspector General (IG) of the DOD to submit a report to Congress detailing the results of an investigation into compliance with regulations dealing with the adverse personnel actions based on "conscience, moral principles, or religious beliefs." Also, the law required the IG to identify the number of times the DOD IG or the IGs of the military branches were contacted regarding incidents involving the rights of conscience. determine: Inspector General's Report On 22 July 2015, the IG completed that report. 24 The report had three objectives to 1. The extent to which the DOD issued and complied with regulations designed to protect the rights of conscience for service members; 2. The extent to which the DOD issued and complied with regulations designed to protect chaplains' rights of conscience; and 3. The number of contacts received by the IG of the DOD and IGs of the US Military Departments regarding incidents involving the rights of conscience of a service member or chaplain. 25 7

12 Regarding Objectives 1 and 2, the Air Force reported that it had complied with the 2013 NDAA and the amendment made in the 2014 NDAA by revising Air Force Instruction 1-1 "Air Force Standards," Air Force Policy Directive 52-2 "Accommodation of Religious Practices in the Air Force," and Air Force Instruction "Religious Accommodation Requests." Because the Air Force did not track the status or trends for final disposition of religious accommodation requests, the DOD IG was not able to assess the timeliness of processing those requests. 26 For Objective 3 of the report, the IG identified a total of 398 contacts across the Services from concerning the rights of conscience made to the IGs of the DOD and the separate Military Services, along with Combatant Commands, the Defense Privacy and Civil Liberties Division, and the Military Services Equal Opportunity Offices. 27 Twenty-seven percent (107 of 398) of these contacts were broken down into five categories of accommodation: dietary, grooming, medical, uniform, and worship. The other 291contacts were organized in 17 categories for analysis "relating to leadership and command climate and...concerning external forces or process questions." 28 Additionally, the report organized the contacts into "low density" and "high density" faith groups. The low density faith groups included Judaic, Muslim, Buddhist, Hindu, Pagan, and Wiccan faith traditions, along with those who identified as having a nontheistic belief system. 29 The report was not clear if atheism was categorized as a nontheistic belief system. Low density contacts amounted to 21 percent of all contacts (84 of the 398). The report never dealt with the 79 percent of the contacts from high density faith groups, presumably the several Christian denominations, or why it placed a greater concern on the low density contacts. The IG report's analysis emphasized the accommodation of religious practices rather than the restrictions on religious expression. This emphasis included a recommendation that the 8

13 Under Secretary of Defense for Personnel and Readiness, in conjunction with the Armed Forces Chaplains Board and the Defense Commissary Agency, determine a more effective approach to assuring the demands for kosher and halal foods are met overseas. Other than mention several categories of contacts that appear to fall under religious expression of military members, the IG report said little about how the Military Services are treating the expression of religious faith. The report acknowledged the difficulty in verifying the completeness of the data. 30 Two areas the report identified for potential inaccuracies were 1) mischaracterization of the nature of the complaint by either the complainant or the recipient because the Military Services generally did not have a code to identify "rights of conscience" issues; and 2) individuals may have chosen not to report incidents through official complaint channels. Left unanalyzed in the report was whether the Military Services routinely restricted religious expression without a compelling government interest. Further investigation is necessary. Historical Context Because the Air Force is an arm of the federal government, its actions must comply with the Religion Clauses of the First Amendment of the Constitution. Understanding the current state of the law governing the Free Exercise and Establishment Clauses requires an historical perspective. Even as late as 1952 the Supreme Court recognized the religious character of this nation. Writing on behalf of the majority of the Court in Zorach v. Clauson, Justice William O. Douglas held "We are a religious people whose institutions presuppose a Supreme Being." 31 Though Justice Douglas never offered any evidence or any argument for this presupposition, in 1950s America that we were a theistic religious people was a self-evident truth. Indeed since the foundation of the British Colonies on the North American continent it appears America has been 9

14 dominated by a Christian Consensus. "Christian Consensus" conveys the understanding that the populace generally regarded Christianity as true and applied its principles to both public and private life. Documents governing public policies, if not overtly Christian, at least implicitly held to principles of transcendent natural law. 32 Steeped in this natural law tradition, the Mayflower Compact, the governing document the Pilgrims drafted for the Massachusetts Bay Colony, affirmed that they undertook their endeavor to settle in the New World "for the glory of God, and advancement of the Christian faith." 33 In fact, they created this oath "in the presence of God" as a witness to their covenant. Over a century and a half later, the writings of several of the Founding Fathers suggest their religious sentiments drove the push for independence from the British crown and Parliament's rule. John Adams affirmed "The general principles on which the fathers achieved independence were... the general principles of Christianity... I will avow that I then believed, and now believe, that those general principles of Christianity are as eternal and immutable as the existence and attributes of God; and that those principles of liberty are as unalterable as human nature." 34 The Founders embodied these unalterable principles of liberty in the Declaration of Independence. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed." 35 To the American people at that time, the equality of mankind, unalienable rights, and the authority to govern ourselves found their source, not in government, nor in humanity, but in God. In his Farewell Address to the nation George Washington attested to the need for a religious faith to hold the nation together. "Of all the dispositions and habits which lead to 10

15 political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." 36 In a 21 June 1776 letter to Zabdiel Adams, John Adams wrote "[I]t is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue." 37 His sentiment remained the same after the Constitutional Convention. Adams affirmed in a letter to the First Brigade of the Third Division of the Militia of Massachusetts that "[W]e have no government armed with power capable of contending with human passions unbridled by morality and religion...our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." 38 Benjamin Rush, signer of the Declaration, Surgeon General of the Continental Army, and a delegate to the Constitutional Convention, ardently held "[T]he only means of establishing and perpetuating our republican forms of government is the universal education of our youth in the principles of Christianity by means of the Bible." 39 Like Washington and Adams, he believed that by removing Christian principles from education, one can effectively remove the foundation of the American republic. American constitutional law was not created in a vacuum, but in a society with a deep religious tradition. Within this historical context and understanding of religion's role in the foundation and preservation of the country, the Constitutional Convention drafted the U.S. Constitution and, later, the First Congress drafted the First Amendment with the Religion 11

16 Clauses. The Supreme Court has even acknowledged the historical context surrounding the First Amendment is "contemporaneous and weighty evidence of its true meaning." 40 Religion in the Military The character of the Christian Consensus in America even found its way in the U.S. military. In 1791, the same year the First Amendment was ratified, the First Congress made provisions for the US Army chaplaincy. 41 Congress also prescribed, in 1799, that Navy commanders "take care that divine service be performed twice a day, and the sermon preached on Sundays" aboard their vessels. 42 The next year Congress added that commanders of ships and vessels "cause all, or as many of the ship's company as can be spared from duty, to attend at every performance of worship of Almighty God." 43 Though attendance at religious services is no longer required, U.S. law still "earnestly recommends" attendance "at every performance of worship of Almighty God." 44 As the American republic faced the challenge of a civil war, Commander-in-Chief Abraham Lincoln ordered that Sunday labor in the Army and Navy be reduced to only what was necessary. He issued this order so "The discipline and character of the national forces should not suffer, nor the cause they defend be imperiled, by the profanation of the day or name of the Most High." 45 In World War II, another president wrote "As Commander-in-Chief I take pleasure in commending the reading of the Bible to all who serve in the Armed Forces of the United States." 46 In March 1941 President Franklin D. Roosevelt's brief letter of encouragement became the foreword in the New Testaments provided to soldiers with public funds. 47 Before the invasion of Normandy on 6 June 1944, General Dwight D. Eisenhower delivered a message to the soldiers, sailors, and airmen of the Allied Expeditionary Force. He concluded his remarks 12

17 with an encouragement of corporate prayer. "Good luck! And let us all beseech the blessing of Almighty God upon this great and noble undertaking." 48 Statistics show that religion still plays an important part in the lives of Airmen. According to Air Force Personnel Center (AFPC), as of December percent of Airmen in the Regular Air Force and the Reserve Component identify with a particular religious belief. 49 With 72.9 percent, Airmen selected Christianity in its several denominations as the largest category of religious preference. 50 Those who selected "No Religious Preference" or "Unknown" were about 20.6 percent. 51 Three percent identified their religious preference as either "Agnostic," "Atheist," or "Heathen." The Air Force has recognized the beneficial impact of religious faith on the wellness of its fighting force. The Comprehensive Airman Fitness program recognizes spiritual well-being as an important component for mission success. 52 Spiritual fitness is defined as "The ability to adhere to beliefs, principles, or values needed to persevere and prevail in accomplishing missions." 53 To the Air Force, the resiliency of Airmen requires their spiritual fitness. For nearly 80 percent of Airmen, religious faith is part of their spiritual fitness. The Air Force also recognizes that having a religious affiliation is a factor in preventing suicide. 54 Results of a study published in the American Journal of Psychiatry confirm the Air Force's understanding that religious affiliation is associated with less suicidal behavior. 55 One study suggested that more religiously devout persons, as compared to others who merely identify with the same religion, are less likely to attempt suicide. 56 If in fact religious affiliation is a factor in preventing suicide, the Air Force has an interest in cultivating an atmosphere that is at least more accommodating toward religious expression. A policy that has the effect of silencing religious expression may very well work against the Comprehensive Airman Fitness program. 13

18 III. CURRENT STATE OF THE LAW The First Amendment provides two restraints on government with respect to religion. The text of the First Amendment reads "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." 57 This amendment means that, first, the government cannot, by law, establish a national religion. Secondly, the government cannot substantially burden or outlaw the expression of religious beliefs or practices. A solution that ensures Air Force policy protects religious expression must meet the criteria of both the Establishment Clause and the Free Exercise Clause of the First Amendment. Some confusion often arises about when to analyze a case under an Establishment Clause analysis and when a case warrants a Free Exercise Clause analysis. Generally speaking, an Establishment Clause analysis addresses government action or coercion that promotes one religion over another. 58 The Free Exercise Clause cases typically involve the direct targeting of individual religious practices or the accommodation of religious beliefs from a generally applicable law. 59 Both analyses are necessary in the military context as Service members may be acting in either their government capacity and as individuals. The Establishment Clause analysis applies when government speech or actions are involved. A Free Exercise analysis applies to individual religious expression. This section begins with the evolution of the Supreme Court's understanding of the Establishment Clause to require a concept of neutrality. The discussion then flows to the requirements of the Free Exercise Clause and the Religious Freedom Restoration Act. Following that the paper discusses the difficulty in applying the concept of strict neutrality regarding 14

19 religion. The paper offers the concept of "benevolent neutrality" as the appropriate approach. Finally, this section explains the "Ignoramus's Veto" that attempts to block religious expression because someone is determined to find an establishment of religion even when no reasonable person would conclude that a religious endorsement was made. Establishment Clause The judiciary largely ignored the "wall of separation" metaphor 60 until 1947 in the Supreme Court case Everson v. Board of Education. 61 That Court held a New Jersey law reimbursing parents for bus fare to transport students to school did not violate the Establishment Clause even though it benefitted students who went to private religious schools. In delivering the opinion of the Court Justice Hugo Black stated "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach." 62 In moving the constitutional jurisprudence toward the concept of government neutrality, the Court insisted that government cannot pass laws "which aid one religion, aid all religions, or prefer one religion over another." 63 In extending the concept of government neutrality, the 1968 Court struck down an Arkansas law that prohibited the teaching of evolution in public schools. "Government in our democracy must be neutral in matters of religious theory, doctrine, and practice The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." 64 The Court held that government was absolutely prohibited from adopting programs or practices which aided or opposed any religion and extended the posture of neutrality to position between religion and nonreligion. In Lemon v. Kurtzman, the Court established a test, known as the Lemon test, to determine if government action unconstitutionally violated the Establishment Clause. 65 The test 15

20 asked three questions: 1) Does the challenged law, or other governmental action, have a bona fide secular or civic purpose; 2) Does the primary effect of the law or action neither advance nor inhibit religion? In other words, is it neutral; and 3) Does the law or action avoid excessive entanglement of government with religion? A negative finding to any of these questions results in the government action being found unconstitutional. The Lemon test has been used to strike down laws that include the reimbursement of secular instruction at private, religious schools, 66 an Alabama statute authorizing a period of silence in all public schools for meditation and voluntary prayer, 67 and a Louisiana mandate that if either of the theories of human origins, creationism or evolution, were taught, the other must be taught equally. 68 The Supreme Court, however, has not made clear whether the Lemon test remains the law of the land. Since its introduction in 1973, the Lemon test has come under severe criticism. The author of the Lemon opinion, Chief Justice Warren Burger, criticized the application of the Lemon test in Wallace v. Jaffree. The Court's extended treatment of the "test" of Lemon v. Kurtzman, suggests a naïve preoccupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide "signposts." "In each [Establishment Clause] case, the inquiry calls for line-drawing; no fixed, per se rule can be framed." In any event, our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion. Given today's decision, however, perhaps it is understandable that the opinions in support of the judgment all but ignore the Establishment Clause itself and the concerns that underlie it. 69 Justice Antonin Scalia criticized the Court's inconsistent application of the Lemon test as well as the test itself. "[L]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center 16

21 Moriches Union Free School District." 70 Justice Sandra Day O'Connor chastised the Court's application of the Lemon test in Aguilar v. Fenton because it "condemns benign cooperation between church and state." 71 The Supreme Court has even declined to follow the Lemon test in several Establishment Clause cases since In Marsh v. Chambers the Supreme Court refused to apply the Lemon test to the Nebraska legislature's practice of opening each legislative session with prayer. 72 In the introductory section of the Court's opinion, the majority mentioned that the Court of Appeals for the Eighth Circuit decided the case by using the Lemon test. The majority opinion made no mention of the Lemon test in the rest of its analysis. Instead the Court analyzed the practice of legislative prayers in an historical context to find that it did not violate the Establishment Clause. Analyzing Establishment Clause cases by measuring fidelity to the longstanding traditions of the American people the way the Court analyzed the issue in Marsh is the approach Justice Scalia recommended as a viable replacement for the Lemon test. 73 The Court also refused to apply the Lemon test in Lee v. Weisman. 74 Using, rather, what Justice Scalia called a "psychological coercion test," the Court struck down the practice of prayers at middle-school graduations because the Court found subtle coercive pressures existed and students had no real alternative which would have allowed them to avoid the fact or appearance of participation in such prayers. Because the Supreme Court has not been consistent in its application of the Lemon test Justice Scalia feared the lower courts would be confused as to it application. 75 In fact, some Circuit Courts have begun to carve out exceptions to the application of the Lemon test. 76 Though the Court has offered mixed signals on the Lemon test, this research paper assumes that the test is still required. 17

22 Free Exercise Clause The Free Exercise Clause protects the rights of individuals to religious expression without government interference. Most cases involving the Free Exercise Clause deal with law or ordinances that burden religious exercise. The research in this paper does not address the nuances of case law in Free Exercise cases. Instead it focuses on the legal authority that Air Force policy involving religious expression rests. In applying a standard of "strict scrutiny" in a Free Exercise case, the Supreme Court in Sherbert v. Verner held that any incidental burden by government on the free exercise of religion must be justified by a compelling government interest. 77 When government action burdens a constitutional right, strict scrutiny is the legal standard that requires government to show that the application of a statute, or other government action, furthered a compelling interest and used the least restrictive means to further that interest. In trying to define "compelling government interest," the Court stated in Wisconsin v. Yoder stated "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." 78 The Court made this strict scrutiny a very high standard for government to meet. In 1990, however, the Supreme Court changed the standard. That year the Court decided Employment Division v. Smith regarding the religious ceremonial use of peyote, a drug made from a cactus found in Mexico and in some areas of the southwest region of United States. 79 Oregon law criminalized the use of peyote. Alfred Smith and Galen Black had been fired from their jobs with a drug rehabilitation organization, ironically, because they ingested peyote as part of a religious ceremony of their Native American Church. They applied for unemployment compensation but were denied because they had lost their jobs because of misconduct. They filed suit, claiming that denial of their unemployment compensation violated the Free Exercise 18

23 Clause. The attorneys for Smith and Black argued the Court should apply strict scrutiny because the Oregon law criminalized their free exercise of their religion without a compelling interest. The Court refused to apply the standard of strict scrutiny. Instead, the Court held the Free Exercise Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids the performance of an act that his religious belief requires. Because the Oregon law was not specifically directed at religious practices and was otherwise constitutional as applied to those who engaged in drug use for nonreligious reasons, it was permissible. Therefore, Oregon's law prohibiting the use of peyote, and subsequently, the denial of employment benefits were constitutional. Following Smith, more than 50 Free Exercise cases were decided against religious groups. Congress, in 1993, passed the Religious Freedom Restoration Act (RFRA) in response to the Court's decision in Smith. 80 With this act Congress found that laws neutral toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise. Congress then applied a strict scrutiny standard to all federal laws and their implementation. The significance of this legislation is that it places a standard of strict scrutiny on the actions of the Air Force that substantially burden the free exercise of religion. Any action by the Air Force to deny the free exercise of religion must be in furtherance of a compelling government interest and use the least restrictive means to accomplish that compelling interest. The definition of a "compelling government interest" is somewhat difficult to nail down. As we will see in Section IV, the Air Force has identified several areas it considers to be a compelling government interest. 19

24 Strict Neutrality As we have seen with Supreme Court case law, accomplishing neutrality is not by some formula or bright line rule. The Supreme Court's current interpretation of the Religion Clauses and the US Code require the Air Force to remain neutral with respect to religion, 81 and refrain from restricting religious expression without a compelling government interest. 82 But, what does neutrality mean? Two approaches for Air Force policy to meet the demands of the Constitution are "strict neutrality" and "benevolent neutrality." Strict neutrality applies a total separation of government action and religious activity or expression where incidental benefits to religion are considered an establishment of religion. Benevolent neutrality holds that some cooperation between government and religion is appropriate and does not threaten to establish a religion. The best approach for the Air Force is one that allows for the most religious expression without favoring one religion over another. With the murkiness of the Establishment Clause waters presenting no clear guide to how the Air Force must approach the expression of religion in its ranks, the concept of strict neutrality has persisted. The MRFF, based on its understanding of Supreme Court's rulings, insists strict neutrality is required. The MRFF suggests the Air Force ensure no Airman is compelled in any way to witness or engage in any religious exercise, or be subjected to religious proselytization, evangelization or persuasion of any sort in a military setting. 83 Strict neutrality imputes the actions of members in uniform, especially commanders and other leaders, to the Air Force itself. According to strict neutrality, a cadet writing a scripture verse on a whiteboard provided by the Air Force is a violation of the Establishment Clause because government property cannot be used at all to promote a religious message. 20

25 The position of strict neutrality, if the Air Force were to adopt it, would remove solemnizing prayers at ceremonial events because prayer promotes religion over nonreligion. Strict neutrality would do away with the chaplain's corps because they are paid with public funds to promote a religious perspective. Strict neutrality would prevent individual Airmen from offering comforting or encouraging religious messages to fellow Service members because the religious expressions are offered in a military setting. Strict neutrality, essentially, is that the Air Force must guarantee Airmen the freedom from religion Even though some posit, like the MRFF, that the application of strict neutrality towards religion is imperative, it is becoming clearer that it is also impossible. In his essay "The Illusion of Religious Neutrality" Steven D. Smith, the Warren Distinguished Professor of Law at the University of Sand Diego, illustrated this impossibility of strict neutrality in his analysis of Epperson v. Arkansas which struck down an Arkansas law that prohibited the teaching of evolution in public schools. 84 In declaring that the government must be neutral in matters of religion, the Court in Epperson also said "the State may not adopt programs or practices in its public schools or colleges which 'aid or oppose' any religion. This provision is absolute." 85 The Court held that since the teaching of evolution is opposed some religious views, Arkansas impermissibly adopted the law in order to protect such religions from contrary views. Professor Smith concludes that by the Court's own logic that evolution contradicts the teachings of some religions and, the Constitution imposes an absolute prohibition against public school programs that "aid or oppose" any religion the teaching of evolution in public schools would also be prohibited because it opposes religion. Strict neutrality in this case then forbids states from prohibiting the teaching of evolution and forbids them from teaching evolution. 21

26 Indiana University Robert H. McKinney School of Law professor, R. George White highlights problems related to the concept of strict neutrality which must be maintained, not just between religions, but also with irreligion. 86 He pointed out that the evils that case law seeks to avoid are sectarianism, denominational advancement, exclusivity, intolerance, favoritism, proselytization, discrimination, or religious marginalization. According to professor Wright, the rationale behind these Establishment Clause cases is that they try to universalize a common ground among those of different creeds by assuming in the end they are kindred spirits. 87 In suggesting that the courts do not have a coherent, workable sense of religious neutrality, professor Wright stated "the problem is that the courts will always have several important neutrality considerations that pull in various, irreconcilable directions." 88 One can quickly see the chance of common ground on religious expression between a theist, who believes in a supreme being, and an atheist, who does not believe in a supreme being, is remote. How can a government be strictly neutral as between them? The majority in McCreary County v. American Civil Liberties Union of Kentucky approvingly quoted Justice John Marshall Harlan II's dissent in Sherbert v. Verner. Justice Harlan stated "The constitutional obligation of neutrality...is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation." 89 Following the Supreme Court's ruling in McCreary County, the US Court of Appeals for the Ninth Circuit refused to apply "an absolute standard of neutrality because doing so would evince a hostility toward religion that the Establishment Clause forbids." 90 Justice Arthur Goldberg warned that "untutored devotion to the concept of neutrality can lead to invocation or approval of results...of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious." 91 Even in Lemon, the majority opinion held 22

27 "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable." 92 In his dissent, Justice Scalia recently observed that neither the Constitution nor our history and tradition requires strict neutrality between religion and irreligion. 93 One has to notice that a plain reading of the text of the First Amendment and the rest of the Constitution finds neither the mention of neutrality toward religion, nor the command to erect a "wall of separation between Church and State." 94 Religious freedom is the goal of the First Amendment; not religious suppression. 95 The Constitution provides no guarantee for the freedom from religion. Supreme Court case law does not require strict neutrality that shields an observer from unwanted religious expression. For over 150 years of constitutional governance in America, strict neutrality toward religion was not required nor was it practiced in the military. While preventing coercion is important, the concept of strict neutrality is unworkable and would deny too much religious expression in the military. Benevolent Neutrality Something impossible to obtain or maintain cannot be required or expected, yet the Supreme Court's current interpretation of the Religion Clauses demands at least some form of neutrality. To reconcile this apparent impasse, the Court has provided in its First Amendment cases the concept of "benevolent neutrality." The Supreme Court has reiterated that neutrality does not require government to completely ignore religious principles or institutions. The fountainhead for the Court cases involving the concept of neutrality in Establishment Clause cases, Everson, also held that the Constitution did not require the government to be the adversary 23

28 to religion. "State power is no more to be used so as to handicap religions than it is to favor them." 96 The Court held in Zorach "When the state encourages religious instruction or cooperates with religious authorities...it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs." 97 In fact the majority stated "To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe." 98 The course of constitutional neutrality, the Supreme Court affirmed in Walz v. Tax Commission of New York, is not a rigid, straight line. The general principles of the First Amendment require that the American people "will not tolerate either governmentally established religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference." 99 The effect of government action on religious expression must be considered when neutrality is applied. The Supreme Court once again reaffirmed the concept of benevolent neutrality in its holding that "Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice." 100 According to Justice Goldberg the purpose of the Religion Clauses is "to promote and assure the fullest possible scope of religious liberty and tolerance for all and to nurture the conditions which secure the best hope 24